FMLA Eligibility of Non-Civil Service Employees Does Not Last Forever

FMLA eligibility of non-civil service employees does not last forever once attained thereby prohibiting an employer from ever recalculating eligibility.

In Davis v. Michigan Bell Tel. Co., No. 06-10513, 2007 U.S. Dist. LEXIS 18940 (E.D.Mich. March 19, 2007), the employee first met the FMLA eligibility requirements for depression on September 24, 2004. She required and was granted additional intermittent absences in October, November, and December 2004. In January 2005, the employer recalculated Davis' eligibility and denied her FMLA leave because she had not worked 1250 hours in the 12 months preceding her first request for leave after the new year. The employer used the calendar leave method for calculating the 12-month FMLA leave year. Her first request for leave after the new year was for depression.

David argued that Michigan Bell violated the FMLA when it recalculated her eligibility in January 2005. According to Davis, once she became eligible for a serious health condition that requires intermittent leave, her eligibility cannot be redetermined with respect to that condition. The Court disagreed.

The Court found that, generally, intermittent absences stemming from the same serious medical condition all relate back to the original eligibility and an employer is precluded from recalculating eligibility for each new period of absence. However, there is a limitation. The Court continued:

An employer may recalculate an employee's FMLA eligibility at the commencement of the first absence in a new 12-month period as designated by the employer.

[I]t is our position that the 1,250-hour eligibility test is applied once, on the commencement of a series of intermittent absences, if all involve the same FMLA-qualifying serious health condition during the same 12-month FMLA leave year. The employee in such a case remains entitled to FMLA leave for that FMLA reason throughout the 12-month period, even if the 1,250-hour calculation is not met at some later point in the 12-month period during the series of related intermittent absences.

Comment: FMLA eligibility is determined as of the first absence in a series of related intermittent absences for the same covered condition, but only for the 12-month period that the employer has elected as the FMLA leave year. Once that 12-month period expires an employer has the right to determine anew if the employee meets the FMLA eligibility requirements, even if the leave is for the same serious health condition the employee met the previous year. The upshot of the decision and the DOL Opinion letter is that eligibility does not attach to each serious health condition and last forever once met.

The decision is applicable to non-civil service employees covered by Title I, congressional employees covered by the CAA, and employees of the Executive Office of the President through the PEOAA. It is not applicable to civil service employees covered by Title II. Title II technically does not have an eligibility requirement. It does, however, define a covered "employee" as a someone who has been employed in the civil service for at least 12 months. Even if we treat 12 months of civil service employment as an eligibility requirement, once the 12 months has been met the employee will always meet this requirement and, therefore, will always be eligible for FMLA leave.